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INTRODUCTION

Copyright law establishes a framework to protect artistic creation by providing a system of economic incentives. By granting an artist property rights in her work, the Copyright Act fosters the production of a wide array of creative works from many different genres.’ To this end, the Copyright Act does not define art, rather it draws lines and sets forth flexible categories of works that are eligible for protection. There are no qualitative tests, simply a low threshold of originality and a requirement that the work is an expression, not an idea. Even with this broad framework and flexible approach, the Copyright Act fails to extend protection to many movements within modern art.

Modernism rebels against the traditional norms of originality, ownership, and expression that define copyright protection. The modern artist challenges notions of originality by lifting images from pre-existing works to present novel ideas about society, politics, and consumerism. Ownership is questioned by appropriation artists who take the work of another and claim it as their own. Artistic expression, once the essence of art, is now subservient to the artistic idea.”Modernism’s ambitions are not the ambitions of art, but those of politics or psychology or pornography or something else.”

Some commentators believe the Copyright Act should adapt to cover forms of art that did not exist or were in their inception at the time the Act was written. Others argue that the Copyright Act discriminates against modem artists because it draws lines using traditional notions of creation and originality. These people argue that the Act must be changed or modernism and its wealth of socially rewarding commentary will suffer.

The Copyright Act was written to minimize subjective evaluations, but to accommodate modem art, judges would have to interject their aesthetic sensibilities in determining whether an artist’s idea was original.

COPYRIGHT INCENTIVES: AN OVERVIEW

The overriding purpose of copyright law in the United States is to encourage the widest possible dissemination of artistic works to the public. The Copyright Act is based on the presumption that authors will not invest their time and money in creating original works unless they are granted certain property rights. The types of property rights implicated by this presumption are the author’s right to control the distribution of her work in the marketplace and the right to profit from the use of her work in the marketplace.

To this end, the framers of the Constitution provided that Congress should have the power to enact a statute to grant such property rights and economic incentives to authors. The Constitution provides for the enactment of a copyright statute “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”‘ According to this constitutional mandate, the Copyright Act was enacted. Copyright protection is extended to “original works of authorship fixed in any tangible medium of expression.”” The Copyright Act provides artists and authors with economic incentives to create unique and original works which contribute to our cultural heritage.”

Economic incentives guarantee a fair return for an author’s effort to increase the amount of creative work available to the public.  An artist should not lose the economic return she could reasonably expect to get from her work due to someone illegally copying her work and selling it, thus supplanting the original artist’s market. Copyright law also recognizes that authors need to draw on the works of others for inspiration. For our national culture to thrive, authors must be permitted to create works that draw from their predecessors. The need of authors to draw from the work of others must be balanced with the need to grant economic incentives for original works.

The Copyright Act strikes a balance by focusing on protecting the copyright holder’s economic incentives for continued creation, rather than on protecting the rights in a work from any “hint of infringement.”‘ To this end, the Copyright Act employs a liberal fair use standard 6 that allows copying when the harm to the market is insubstantial and outweighed by a strong public interest in fostering works that criticize and question societal norms through commenting on the copyrighted work of another.

COPYRIGHT INCENTIVES AND MODERN ART

Despite the Copyright Act’s long history and success at providing incentives for artists and authors to create a near-infinite number of creative works, these same incentives that fostered creativity in other media and movements run counter to the underpinnings of the modern art movement. Copyright law has a moral aspect that contradicts appropriation art: that a person should not take another’s work for their financial gain. This aspect of copyright law conflicts with the practice of modern artists who freely comment on copyrighted images from the mass media that are controlled by broadcasters, publishers, and motion picture conglomerates. Incentives for modern artists are more political than economic. The modern artist creates works to challenge these powerful groups which might otherwise have monopoly control over the communication of the very images that create our popular culture?

Because many modern artists appropriate the copyrighted works of others to comment on society, much of modern art is not copyrightable. Likewise, conceptual artists challenge the same powerful groups as the appropriation artists by redefining what is art and what are socially valuable ideas. The conceptual artist does this by creating works that are original in idea, but not expression.  Such works do not get copyright protection because protection is only extended to works that are original in execution, rather than original in an idea. Yet, modem art continues to thrive, even though it does not benefit from the incentives of the Copyright Act. If modern art continues to thrive without economic incentives, extending copyright protection to modern art may not be necessary.

PROTECTION OF ORIGINAL EXPRESSION, NOT IDEAS

Modernism not only runs counter to the incentive structure of the Copyright Act but to its minimum requirements that work be original in expression. Within modern art is the conceptual art movement which challenges notions of creativity by embracing the idea as art, rather than the execution.’ This entire movement challenges the underpinnings of copyright law: the notions of originality and expression versus the idea. The notion that art does not need to have any form at all so long as the artist has a mental conception is a total rejection of copyright’s notion that a line can be drawn between idea and expression. “Idea” refers to a work’s animating concept, such as a story of two star-crossed lovers, while “expression” refers to the ultimate, literal expression, such as the play that tells the story of the two lovers.’Courts will look at creation and separate the idea, the unprotected part of a work, from its expression, the protected part of the work. This separation represents an important policy decision of what parts of work authors should be allowed to monopolize and what parts belong in the public domain, so others are free to build on them.

INFRINGEMENT BY MODERN DERIVATIVE WORKS

Much of modern art consists of what in copyright terminology is called derivative works. A derivative work is “a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, or any other form in which a work may be recast, transformed or adapted.”‘

When an artist makes a derivative work, he borrows from, transforms, or appropriates a pre-existing work to make his creation. However, the copyright owner has the exclusive right to prepare such derivative works. Modern artists frequently infringe copyrights when they use their work to comment on contemporary images that have not yet fallen into the public domain or when they fail to pay licensing fees. Such works infringe the underlying work, regardless of the degree of transformation or creativity the derivative artist has breathed into the secondary work. No matter how creative the modern artist’s transformation of the underlying work may be, he must not trammel on the property rights that the original artist has in her work. If the modern artist were allowed to create derivative works without the permission of the copyright holder, it would completely undermine the incentive structure of the Copyright Act. Thus, when modern artists who appropriate from others in creating derivative works are found guilty of infringement, it is not because of a judicial bias against modem art, but because of the basic principles of copyright law, that one may not steal the copyrighted work of another for their benefit.

OVERVIEW OF MODERN ART

We now know that modern art redefines and challenges traditional definitions of art. It is important to understand why modern art does this. Such an understanding will help to explain why it would be unwise for the Copyright Act to accommodate modernism. “Modernism critiques the very attributes that copyright law uses to define art: namely, artistic creativity and originality. “‘  There is no predominant trend in modernism, rather there are different movements which use different elements of the modernist tradition.

The fragmentation of modern art is a reflection of the “glut of images and confrontation of images taken straight from advertising media, television, film, and ‘high’ art that are direct reflections of the contemporary experience.”  Via a plethora of creative avenues, the modern artist questions the way society sees certain images by challenging the meaning society assigns to such images.’ An example of assigning new meaning to an old image is Duchamp’s L.H.O.O.Q.”‘ By defacing the Mona Lisa, Duchamp gave new meaning to this seminal piece of renaissance artistry. He challenged the viewer to consider the work in a new, debased context, that mocked art history and the icons of classical art. A more contemporary example of questioning society by assigning new meaning to icons of popular culture is the work of Cady Noland. Noland’s installation of columns of Budweiser cans in a room decorated with depictions of violence is an example of images of the mass media and mass consumption being used to challenge traditional notions of consumerism and pop culture.’Modern art, like Modernism before it, is atypical in the art history continuum because it does not use nature as a referent, rather it looks to a “closed system of fabricated signs,”‘” reflected in consumer products, pop icons, media images, and contemporary (copyrighted) works of art. It is through the use of these familiar images that modern art strives to redeem the meaning of commonplace words, philosophies, and politics.’ By employing such usual strategies, the modern artist pushes the envelope of traditional notions of art by seeking “unheard of revolutionary forms of expression and sensation, going that one final step beyond which it is impossible to go.”‘” Thus, the incentive for modern creation is in questioning art to the extreme. It is a competition between artists. Each artist tries to go one step farther than the other in redefining art. This type of art may not lead to museum masterpieces,’ and it may not even sell, but economic incentives are not what fuel the modern artist. Stretching the limits of what is art is what motivates modern creation.

 OVERVIEW OF APPROPRIATION ART

Appropriation art is another movement within modern art that has its distinct copyright problems. The appropriation artist lifts images from others, sometimes in their entirety. Thus, many of these derivative work not only lack originality, but they often infringe copyrighted works. Appropriation art began in the nineteenth century with literary borrowing from existing works such as James Joyce’s Ulysses and T.S. Elliot’s The Wasteland. By the twentieth century, art began to incorporate images from the mass media and pop culture, as well as other works of art. Appropriation artists employ a wide range of techniques, from incorporating a single element of a pre-existing work into a new work (collage) to appropriating another image without alteration (appropriation).  Through collage and appropriation, the artist challenges the very concepts of creativity, originality, and authorship, values upon which fine art has traditionally been evaluated.  Artists utilize these techniques to comment on our image-saturated society and to help us understand the process by which the mass media has subsumed a huge portion of our daily lives. By juxtaposing images and placing them in new contexts, the viewer is forced to exam how different contexts can dramatically affect meaning.’ An example of the startling effects of recontextualization is Keith Haring’s collage, Mob Flees at Pope Rally, which is comprised of a newspaper clipping of the Pope wiping tears from his eyes with words from newspaper headlines pasted above the picture.

TENSION BETWEEN APPROPRIATION ART AND COPYRIGHT LAW

For appropriation art to work, an artist must borrow from an image that already exists as a familiar part of our collective social consciousness. In this way, the artist can challenge ideas about ownership, originality, and meaning.’ The use of pre-existing contemporary images implicates three sections of the Copyright Act: the exclusive right to reproduce a work,’ the exclusive right to prepare derivative works,’ and the exclusive right to display a work publicly. In Bleistein Justice Holmes said that “others are free to copy the original.

They are not free to copy the copy.”‘By original, Holmes meant the referent in nature. For the modern artist, the referent is not nature, but a self-contained system of contemporary images.1’5 The character of modern art, and its emphasis on a different conception of the original, blurs Justice Holmes’s distinction of what one is allowed to copy.

A balance must be struck between protecting appropriation as an important vehicle of social commentary and safeguarding the incentives of the original artist. ‘ In Rogers v. Koons,” the court tilted the scales in favor of the original artist. To many, this case signaled the death knell of appropriation art.”‘ In Rogers, artist Jeff Koons appropriated an image of a couple with German Shepherd puppies from a photograph taken by Art Rogers. Koons made almost a replica of Rogers’ work in a garishly painted sculpture.’ Koons’s idea was distinct from Rogers’, although his expression was not. The purpose of Koons’s String of Puppies was to comment on society’s obsession with reproducible images, while Rogers’ purpose in his Puppies was to show an inoffensive, charming scene.”

Koons argued that his work was both a parody and legitimate social criticism. To this end, the court applied the fair use test.” The court considered the purpose and character of Koons’s use of Rogers’ copyrighted photograph and incorporated a good faith standard into its formulation of the commercial purpose test.” The court first determined that Koons’s use was for commercial purposes, rather than for the public interest.”

Koons claimed parody as a defense, claiming that he was commenting on the denigration of society caused by the glut of consumerism and mass reproduced images. The court rejected the parody defense, stating that the “copied work must be, at least in part, an object of parody, otherwise, there would be no need to conjure up the original.”‘

ALTERNATIVES FOR THE APPROPRIATION ARTIST

Most appropriation art, like that of Koons, will fail the fair use test because the artist usually sees the necessity to take the heart of the image or the image in its entirety.’ After Rogers, an appropriation artist now has four options: (1) get permission from the original artist before using another’s work; (2) pay a licensing fee, (3) credit the original artist; or (4) make a distinction between an appropriation artist’s one-time use of an image (as in a painting) and multiple uses (as in prints or derivative works). The problem with getting permission from the copyright holder of the source is that the holder may become a private censor who can chill the expression of the artist by limiting the sources of material on which an appropriation artist can comment. 8° As with parody, some appropriation art possesses social and political values that outweigh any economic loss to the copyright owner that results from the parodist’s use. Copyright owners face this type of economic loss because some types of social criticism may be so biting that they will refuse to grant a license out of fear that the parody exposes the owner to an undue amount of criticism, and the parodist will, nevertheless, use the copyrighted image, shielded by fair use.’ As with parody, copyright holders may be unwilling to license their works to modern artists who ridicule the copyrighted work (or, in the case of appropriation art, use it as an instrument of societal ridicule).

CONCLUSION

It is the nature of modern art to stretch the limits on what is considered art. If the Copyright Act were to accommodate modernism, it would have to be continually re-written as artists redefine and rewrite the rules of creativity, originality, and authorship. We are at a time where everything can be art, even Duchamp’s bottle rack. If art has no limits, should copyright have no limits? This is an unworkable proposition. The original incentives of the Copyright Act to encourage unique and original works’ would be seriously undermined.

The current Copyright Act fails to protect most works of modern art. Yet, this is not the result of an intentional bias. Conceptual art and appropriation art expand the definition of art in an almost limitless manner. A workable statute, on the other hand, needs limits. Art needs to be limited by definition for administrative purposes. Art also needs to be limited by definition so protection has some meaning. If the Copyright Act were extended to the outer limits of modern art, it could lead to everything being protected art, as in the case of the copyrightability of ideas. Alternatively, it could lead to nothing being protected, as in the case of allowing appropriation artists to steal the work of others as long as there is some artistic purpose. The Copyright Act imposes limits that are broad, unbiased, and workable. These limits embrace the largest amount of work possible without undermining the incentives of fostering new works of the original expression. Modern art, by definition, undermines original expression. Any laws that would accommodate this type of art would, therefore, undermine the essence of the Copyright Act.